Citation Nr: 0602395
Decision Date: 01/27/06 Archive Date: 02/07/06
DOCKET NO. 03-32 843 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Whether new and material evidence has been received to
reopen a previously denied claim of entitlement to service
connection for bipolar disorder.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
The veteran served on active duty from July 1969 to March
1971.
This appeal to the Board of Veterans' Appeals (Board) arose
from rating decisions of the Los Angeles, California,
Department of Veterans Affairs (VA) Regional Office (RO).
The veteran's file subsequently was transferred to the RO
in Buffalo, New York, and that office forwarded the appeal to
the Board.
The claim for service connection for PTSD is being remanded
to the RO via the Appeals Management Center (AMC) in
Washington, DC, for further development and consideration.
The other claim, however, concerning the bipolar disorder,
will be decided.
FINDINGS OF FACT
1. In an April 1998 unappealed rating decision, the RO
denied service connection for bipolar disorder.
2. The evidence added to the claims file since that decision
is merely cumulative of evidence already of record and/or
does not raise a reasonable possibility of substantiating
this claim.
CONCLUSION OF LAW
The April 1998 RO decision denying service connection for
bipolar disorder is final; new and material evidence has not
been submitted since that decision to reopen this claim. 38
U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104,
3.156, 20.1103 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
1. Whether new and material evidence has been submitted to
reopen a previously denied claim of entitlement to service
connection for bipolar disorder
The veteran is seeking entitlement to service connection for
bipolar disorder.
Because the veteran's claim was previously denied in April
1998, the Board's inquiry must be directed to whether new and
material evidence which is sufficient to reopen the claim has
been added to the record since that time.
In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent laws and regulations and their application to the
facts and evidence.
The Veterans Claims Assistance Act (VCAA)
The Board has given consideration to the provisions of the
VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA)
[codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107) (West 2002)]. The VCAA includes an enhanced duty on
the part of VA to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
The VCAA also redefines the obligations of VA with respect to
its statutory duty to assist claimants in the development of
their claims. Regulations implementing the VCAA have been
enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a)].
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment but not yet final as of that date. However, the
VCAA appears to have left intact the requirement that a
veteran must first present new and material evidence in order
to reopen a previously and finally denied claim under 38
U.S.C.A. § 5108 before the Board may determine whether the
duty to assist is fulfilled and proceeding to evaluate the
merits of that claim. It is specifically noted that nothing
in the VCAA shall be construed to require the Secretary of VA
to reopen a claim that has been disallowed except when new
and material evidence is presented or secured, as described
in 38 U.S.C.A. § 5108. Once a claim is reopened, the VCAA
provides that VA shall make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate the
claimant's claim for a benefit under a law administered by
the Secretary, unless no reasonable possibility exists that
such assistance would aid in substantiating the claim. 38
U.S.C.A. § 5103A (West 2002).
Duty to notify
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant
and which part, if any, VA will attempt to obtain on behalf
of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a
letter from VA to an appellant describing evidence
potentially helpful to the appellant but not mentioning who
is responsible for obtaining such evidence did not meet the
standard erected by the VCAA]. This aspect of the VCAA
applies to issues involving finality and the submission of
new and material evidence.
To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.
First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2005). The Board observes that the veteran was
notified by the September 2003 Statement of the Case (SOC)
and the October 2003 Supplemental Statement of the Case
(SSOC) of the pertinent law and regulations, of the need to
submit additional evidence on his claim, and of the
particular deficiencies in the evidence with respect to his
claim. More significantly, a letter was sent to the veteran
in September 2003, with a copy to his representative, which
was specifically intended to address the requirements of the
VCAA. The letter enumerated in detail the elements that must
be established in order to reopen the claim; and it provided
a description of the evidence still needed to establish those
elements. The letter specifically stated: "Evidence must be
new and material, meaning it has not been considered before
and it is pertinent to your claim."
Second, the RO must inform the claimant of the information
and evidence the VA will seek to provide. See 38 U.S.C.A. §
5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2004). In the
September 2003 VCAA letter, the RO informed the veteran that
VA is responsible for getting "Service medical/personnel
records. VA out-patient treatment records and examinations.
Any federal government agency records that have been cited by
you." See the September 19, 2003 letter, page 2.
Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38
U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2005).
In this regard, the September 2003 VCAA letter advised the
veteran to give the RO enough information about relevant
records so that they could request them from the agency or
person who has them. The veteran was also advised that VA
was "not requesting any additional evidence at this time
unless you identifies (sp) additional evidence in supports
(sp) of your claim that you wish us to review." See the
September 19, 2003 letter, page 2 (emphasis in original).
Finally, the RO must request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2005). In this case, the September 2003 letter
informed the veteran as follows: "It's your responsibility
to make sure that we receive all requested records that
aren't in the possession of a Federal department or agency."
See the September 19, 2003 letter, page 3 (emphasis in
original). This satisfies the regulation, in that it
informed the veteran that he could submit any and all
evidence which was pertinent to his claim, not merely that
requested by the RO.
The Board therefore finds that the September 2003 letter, the
September 2003 SOC, and the October 2003 SSOC properly
notified the veteran and his representative of the
information and medical evidence, not previously provided to
VA that is necessary to substantiate the claim, and properly
indicated which information and evidence is to be provided by
the veteran and which VA would attempt to obtain on his
behalf.
One final comment regarding notice is in order. A review of
the record reveals that the veteran was not provided notice
of the VCAA prior to the initial adjudication of his claim by
rating decision in April 2003. See Pelegrini v. Principi, 17
Vet. App 412 (2004) (Pelegrini I). In Pelegrini v. Principi,
18 Vet. App. 112, 120-21 (2004) (Pelegrini II), withdrawing
its decision in Pelegrini I, the Court clarified that in
these type situations VA does not have to vitiate the initial
decision and start the whole adjudicatory process anew, as if
that initial decision was not made. Rather, VA need only
ensure the veteran receives or since has received VA content-
complying notice such that he is not prejudiced. See, too,
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), indicating
that timing errors such as this do not have the natural
effect of producing prejudice and, therefore, prejudice must
be pled as to it. In Mayfield, the timing-of-notice error
was found to be sufficiently remedied and cured by subsequent
provision of notice by the RO, such that the appellant was
provided with a meaningful opportunity to participate
effectively in the processing of her claim by VA.
In this particular case at hand, the RO readjudicated the
veteran's claim and sent him an SSOC in October 2003,
following the VCAA notice compliance action. He was provided
every opportunity to submit evidence and argument in support
of his claim, and to respond to the VA notice. His
representative submitted written argument in March 2004 and
January 2006.
Duty to assist
As alluded to above, under the VCAA, VA's statutory duty to
assist a claimant in the development of a previously finally
denied claim does not attach until the claim has been
reopened based on the submission of new and material
evidence. Once a claim is reopened, the VCAA provides that
VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claim,
unless no reasonable possibility exists that such assistance
would aid in substantiating the claim. 38 U.S.C.A. § 5103A
(West 2002).
The veteran has been accorded ample opportunity to present
evidence and argument in support of his appeal. See 38
C.F.R. § 3.103 (2004). He declined the opportunity to appear
at a personal hearing. As noted above, his representative
submitted additional written argument on his behalf in March
2004 and January 2006.
Relevant Laws and Regulations
Service connection - in general
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. § 3.303(a) (2005). A psychosis, such as bipolar
disorder, will be presumed to have been incurred in service
if manifested to a compensable degree within one year after
service. This presumption, however, is rebuttable by
probative evidence to the contrary. 38 U.S.C.A. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Service connection also may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2005).
In order to establish service connection for the claimed
disorder, there must be: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
Finality/new and material evidence
In general, rating decisions that are not timely appealed are
final and binding on a veteran based on the evidence then of
record. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§
3.104, 20.1103 (2005). Pursuant to 38 U.S.C.A. § 5108 (West
2002), however, a finally disallowed claim may be reopened
when new and material evidence is presented or secured with
respect to the claim.
The Board notes that there has been a regulatory change with
respect to the definition of what constitutes new and
material evidence, which applies prospectively to all claims
made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30
(Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. Evidence
construed as a claim to reopen was received in March 2003,
subsequent to that date. Therefore, the current version of
the law, which is set forth in the following paragraph, is
applicable in this case.
New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence, that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2005).
A VA adjudicator must follow a two-step process in evaluating
previously denied claims. First, the adjudicator must
determine whether the evidence added to the record since the
last final decision is new and material. If new and material
evidence is presented or secured with respect to a claim that
has been finally denied, the claim will be reopened and
decided upon the merits. Once it has been determined that a
claimant has produced new and material evidence, the
adjudicator must evaluate the merits of the claim in light of
all the evidence, both new and old, after ensuring that the
VA's statutory duty to assist the appellant in the
development of his claim has been fulfilled. See 38 U.S.C.A.
§ 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999);
Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).
Factual background
As alluded to above, in April 1998, the RO denied service
connection for bipolar disorder on the basis that the
evidence did not establish an etiological relationship
between the psychiatric disability and the veteran's military
service.
The veteran was informed of the April 1998 decision denying
service connection by letter from the RO dated in May 1998.
He did not file an appeal; hence, that decision is final and
binding on him based on the evidence then of record.
See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104;
20.1103 (2005).
The "old" evidence
Evidence of record at the time of the April 1998 RO rating
decision consists of the veteran's service medical records
(SMRs), VA examination report dated in May 1997, and private
treatment records.
The service medical records reflect no complaint or treatment
for a psychiatric disorder.
VA examination in May 1997 resulted in a diagnosis of bipolar
disorder. The private treatment records also show a
diagnosis of bipolar disorder.
Analysis
The unappealed April 1998 rating decision that denied service
connection for bipolar disorder is final. See 38 U.S.C.A. §
7105; 38 C.F.R. § 20.1103. As explained above, the veteran's
claim for service connection may be reopened if he submits
new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a) (2005). So the Board's inquiry will be directed
to the question of whether any additionally submitted
evidence (i.e., since April 1998) raises a reasonable
possibility of substantiating this claim.
As mentioned, that April 1998 rating decision denied service
connection for bipolar disorder because the evidence did not
establish a relationship between this psychiatric disorder
and the veteran's military service. So to reopen this claim,
there must be evidence now of record at least suggesting this
condition is linked or related to his military service. The
RO acknowledged in that prior decision that bipolar disorder
had been diagnosed, indeed several times, so the
determinative issue was whether the condition was related to
the veteran's military service, not whether he had it.
The evidence added to the record since the RO's April 1998
decision consists of VA treatment records dated from 1995 to
2003, private medical reports dated from 1994 to 2002, and a
private physician's statement dated in May 2003. The Board
observes that some of the VA and private medical records -
namely those dated prior to May 1998, were previously
considered by the RO and, therefore, are merely duplicative
of evidence already of record. So these additional records
are not new within the meaning of 38 C.F.R. § 3.156. And
while the remainder of these records are new, in the sense
they were not previously before VA decision makers in 1998,
they nonetheless essentially are cumulative in nature since
they merely continue to reflect a diagnosis of bipolar
disorder without also providing a nexus between the veteran's
military service and this diagnosis. Thus, they do not
correct the deficit in the evidence on file at the time of
the RO's decision in 1998. In this regard, the Board notes
that while Dr. G.B.'s May 2003 statement indicates that he
has treated the veteran for bipolar disorder since 1999, it
does not in turn state, or even suggest, the disability is
related to his military service. Clearly, medical nexus
evidence is still lacking. The additional evidence is
therefore not material. See, e.g., Hickson v. West, 11 Vet.
App. 374, 378 (1998).
The only evidence that purports to link the veteran's current
bipolar disorder to his military service are his statements.
These are cumulative and redundant of similar contentions
raised in the past and, therefore, are not new. See Reid v.
Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, it is now
well established that a layperson without medical training,
such as the veteran, is not qualified to render a medical
opinion regarding the etiology of disorders and disabilities.
See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In
Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court
specifically noted that "[l]ay assertions of medical
causation cannot suffice to reopen a claim under 38 U.S.C.
5108."
Because there is still no competent medical evidence that the
veteran's bipolar disorder is etiologically related to his
military service, the additional evidence received since the
RO's April 1998 decision does not raise a reasonable
possibility of substantiating the claim. See 38 C.F.R. §
3.156 (2005). So the Board finds that the veteran's attempt
to reopen his claim is unsuccessful. The recently submitted
evidence not being both new and material, the claim of
service connection for bipolar disorder is not reopened and
the benefit sought on appeal remains denied.
Additional comment
As discussed above, there is no duty on the part of VA to
assist the veteran in the development of his claim in the
absence of a reopened claim. The Board views its discussion
above as sufficient to inform him of the evidence necessary
to reopen his claim. See Graves v. Brown, 8 Vet. App. 522,
524 (1996).
ORDER
New and material evidence not having been received, the
previously denied claim of entitlement to service connection
for bipolar disorder is not reopened. The benefit sought on
appeal remains denied.
REMAND
2. Entitlement to service connection for PTSD
Service connection for PTSD requires: (1) medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a) (i.e., DSM-IV); (2) a link, established by medical
evidence, between current PTSD symptoms and an
in- service stressor; and (3) credible supporting evidence
that the claimed in-service stressor occurred. See 38 C.F.R.
§ 3.304(f) (2005).
With regard to the third PTSD criterion, credible evidence of
in-service stressors, the evidence necessary to establish
that the claimed stressor actually occurred varies depending
on whether it can be determined the veteran "engaged in
combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002);
38 C.F.R. § 3.304(d) (2005). If the evidence establishes the
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. 38 C.F.R. § 3.304(f).
Where, however, a determination is made that the veteran did
not "engage in combat with the enemy," or the claimed
stressor is not related to combat, the veteran's lay
testimony alone will not be enough to establish the
occurrence of the alleged stressor. See Moreau v. Brown, 9
Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App.
163, 166 (1996). Rather, the record must contain service
records or other corroborative evidence that substantiates or
verifies the veteran's testimony or statements as to the
occurrence of the claimed stressor. See West (Carlton) v.
Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown,
6 Vet. App. 91, 98 (1993). Moreover, a medical opinion
diagnosing PTSD does not suffice to verify the occurrence of
the claimed in-service stressors. See Moreau v. Brown, 9
Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App.
128, 142 (1997).
Reasons for remand
Stressor verification
In a May 2003 statement, Dr. G.B. indicated the veteran had
been under his care since 1999 for "combat-related" PTSD.
Initially, the Board notes that insofar as Dr. G.B.'s
statement constitutes a diagnosis of PTSD it is the only one
of record. VA examination in May 1997 did not diagnosis
PTSD. In addition, it is unclear whether Dr. G.B.'s
diagnosis was done in conformity with DSM-IV. Thus, there is
some question as to whether a current disability exists.
Notwithstanding, it appears the RO denied the veteran's claim
on the grounds there was no credible evidence of an in-
service stressor. 38 C.F.R. § 3.304(f). The veteran's DD
Form 214 shows he served in Vietnam, but he was not awarded
any medals indicative of combat. His military occupational
specialty (MOS) was radio operator.
In a May 2002 statement, the veteran reported the following
stressor:
While on guard duty in Long Bien, Viet
Nam in December, of 1970, I was ordered
to fire upon Vietnamese outside our
perimeter, who was thought to be
tampering with our claymores and turning
them 180 degrees back into the direction
of our perimeter. I fired a burst of
three (3) rounds from an m16,
at approximately 250 yards with all fired
rounds hitting my target and disabling
the intruder.
The MPs then arrived and went outside the
perimeter and transported the dead
intruder back into our perimeter.
When the MPs arrived back into our
perimeter, I was told that it was a South
Vietnamese civilian boy, approximately 16
years old, who was collecting the metals
from the claymores to probably sell for
scrap.
I have been living my life with this
tragic error....
The veteran's service personnel records should be obtained
and associated with his VA claims folder in order to provide
a more accurate picture of his duties and responsibilities in
service - including while in Vietnam.
In addition, the Board observes that a request has not been
made of the U. S. Army and Joint Services Records Research
Center (JSRRC), to verify the veteran's alleged stressor.
Private medical records
Dr. G.B.'s treatment records have not been obtained and
associated with the claims file, for consideration.
VA examination
The VCAA and its implementing regulations require VA to
provide a veteran with an examination and obtain a medical
nexus opinion based upon a review of the evidence of record
if VA determines it is necessary to decide the claim.
See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); see also
Charles v. Principi, 16 Vet. App. 370 (2002). The Board
believes the veteran should be afforded a VA examination, if
there is confirmation of his stressor following the above
development.
Accordingly, the PTSD claim is REMANDED to the RO (via the
AMC) for the following action:
1. After obtaining the veteran's
authorization (VA Form 21-4142), request
copies of Dr. G.B.'s treatment records
since 1999. All records obtained should
be associated with the claims file.
2. Also obtain the veteran's service
personnel file (DA Form 20) from the
National Personnel Records Center.
3. Thereafter, the RO must make a
specific determination, based on the
complete record, as to whether the
veteran engaged in combat with the enemy.
4. If combat is not verified, the RO
should attempt to verify the veteran's
alleged stressor with the JSRRC.
If necessary, the RO should ask the
veteran to provide a more detailed
description of the alleged stressor.
5. If the RO determines that the record
establishes the existence of a stressor,
through combat participation
or otherwise, the veteran should be
accorded an examination by a VA
psychiatrist to determine whether the
veteran has PTSD as a result of his
military service. The RO must specify
for the examiner the stressor(s) that it
determined are established by the record,
and the examiner is to be instructed that
only those events can be considered for
the purpose of determining whether the
veteran was exposed to a stressor in
service. The examination report should
include a detailed account of all
pathology found to be present. In
addition, the examiner should address the
following:
(a) whether the stressor(s) determined by
the RO to actually have occurred was
sufficient to produce PTSD;
(b) whether the veteran meets the
diagnostic criteria for PTSD under DSM-IV
and;
(c) whether there is a link between
current symptoms and the stressor(s)
specified by the RO as established by the
record.
The claims folder and a separate copy of
this remand should be made available to
and reviewed by the examiner prior to the
examination.
6. Then readjudicate the claim for
service connection for PTSD in light of
the additional evidence obtained.
If this claim is not granted to the
veteran's satisfaction, send him and his
representative a supplemental statement
of the case and give them time to respond
to it before returning the case to the
Board for further appellate review.
The purpose of this REMAND is to obtain additional evidence
and ensure the veteran is afforded all due process of law.
The Board intimates no opinion, either factual or legal, as
to the ultimate disposition warranted. No action is required
by the veteran until contacted.
The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs